Addendum: To “The Euthanasia Slippery Slope: A Case Study,” Hypothetical And Poll

The Euthanasia Slippery Slope: A Case Study, this morning’s post, has attracted a wider range of opinion than I expected. I considered attaching a poll to the original post; now I’m going to go a step farther, and base that poll on a hypothetical of the kind that I use in my legal ethics seminars.

Speaking of those, on Tuesday, September 17, in Richmond, VA, and Wednesday, September 18, in Fairfax, VA, I’ll be presenting  “The Greatest Legal Ethics Seminar Ever Taught!” for three hours of legal ethics CLE credit to Virginia lawyers and others. The title reflects, other than my own warped sense of humor (“The Greatest Story Ever Told” is one of the worst movies I’ve ever seen), the fact that the legal ethics hypotheticals being discussed cover what I have found to be many of the most contentious, fascinating legal ethics issues extant over 20 years of doing these things. Moreover, I am being joined by my friend and colleague, John May, who approached these issues from the perspective of a practical litigator as well as one who often defends lawyers accused of ethical improprieties. He’s also one combative and clever pain in the ass who loves disagreeing with me, so I recommend bringing popcorn. The details are here.

Now here’s your hypothetical:

Your older sister Tess, a bright, productive woman in her forties, has fallen into depression after learning that she is suffering from premature, progressive dementia, though she is otherwise in good health.  There is no cure, though you have researched her condition and know that researchers have made some major break-throughs. A cure, or at least drugs that can slow down the condition or temporarily reverse it, seems like it may be on the near horizon, but nothing is certain.

Six months ago, your sister executed a document that stated that when she had to be institutionalized, and when she believed it was time, she consented to being euthanized. (She lives in a jurisdiction that has legalized assisted suicide) Now she has reached the point where her family can no longer care for her. She has good days and bad days, and on bad days she does not recognize her family members and makes little sense. On her good days she is lucid, and on one of them, not too long ago, she confirmed that the document she had signed still reflected her wishes.

Less than a week after she has been admitted, her physician at the facility says that she has been declining rapidly, and is in a perpetual state of confusion, anger, delusion and terror. She has never said that this is time to carry out her wishes to be euthanized, but there is no doubt that this is the state she dreaded, and that she would regard this as “time” were she able to think clearly. You are called to the facility, where you learn that she has been given a sedative (surreptitiously, since she is deep in paranoia).  Your family members tell you that they are relieved that this is nearing a resolution, for they do not have the resources to continue paying for the current comfortable facility. If your sister continued to live, she would have to be transferred to what your brother call “a hell hole.”

The doctor says that he is about to administer a lethal injection, and asks you and your brother to assist him, as he believes she might resist. Does she ever! Your sister screams as soon she sees the doctor approach, “Stop him! He’s going to kill me!” You try to reason with your sister, even producing the document she signed. “isn’t this what you want”? you ask. “I don’t know who the hell you are!” she responds, her eyes wide in hysteria. Your brother and an orderly are restraining her as she thrashes in the bed. She cries pathetically, “I want to live! I don’t want to die! Help me! Someone help me!”

The doctor prepares to deliver the injection.

Your poll question is…

51 thoughts on “Addendum: To “The Euthanasia Slippery Slope: A Case Study,” Hypothetical And Poll

  1. In this case, I would say that she had obviously withdrawn her consent. People change their minds all the time. Also, nowhere was it stated that Tess believed that this was the time to euthanize her. It’s probable that she did intend this to be the time, but when it comes to assisted suicide, probable isn’t good enough.

    • Agreed, consent requires a sound mind for death or sex. It might be easier or cheaper to skip that whole pesky free-will thing, but doing otherwise is not suicide but murder. Sadly pre-permission is like pre-crime, irrelevant.

      I was a little surprised the no consent didn’t have more votes. ‘Choose life’ is a nice goal, but that’s the brother’s opinion and not the woman’s. Suicide must be an active choice, as soon as it isn’t an active and informed choice it’s not suicide anymore. Die NOW is the same as withdrawn consent, just more powerful emotion.

  2. Jack any of the No answers would my choice. If we assume that the person who no longer knows who you are is a different person cognitively than the person signing the document.

    If a person resists and screams I dont want him to kill me or I dont want to die that is prima facie evidence of an indivdual who understands fully the consequence of the doctor’s actions. Therefore, you cannot say the person lacks capacity to withdraw consent when that person is acting like any normal person would notwithstanding the illness.

    If she has good days and bad days wait until she is lucid, get permission validated and perform the procedure when, and only when she has the mundset of the person signing the document. If we do not execute those with cognitive disabilities for crimes then we should apply that standard to these decisions.

    • This is where I stand. One to two weeks after entering a facility is a period of confusion, symptoms will invariably get worse. It’s not their true baseline.

    • “If we assume that the person who no longer knows who you are is a different person cognitively than the person signing the document, then you cannot assume that the person facing you would make the same choice.”
      I think that’s actually it in a nutshell.This is, for many intents and purposes, a different person. Saying that this is a person with “diminished capacity” for the sake of this argument, is to say that this is LESS of a person, whose clearly-stated wishes shouldn’t be respected.
      The doctor is playing God. That’s what all too many of them are best at.

      • I asked Jack in the other post if he thought that euthanasia provisions in the case of dementia were unenforceable, because in order for the provision were to be acted on, the person requesting the provision wouldn’t be able to remember or understand why it was made. Basically: Are these almost per se unenforceable?

        Because if they are, then I think that would have to be communicated clearly and up front: Because if that was communicated clearly and up front, Tess might have made the decision to euthanize earlier, when she was still lucid.

        What has happened here, in essence, if that is the case, is that Tess signed an request that could not be acted on, but did not know that, and assumed it would be honored. The doctors involved took it, knowing it was basically unenforceable, and did not tell her. She carried on assuming something that she wished to happen would happen. Meanwhile, when it came time to take action, her request would be ignored, because exactly what she knew would happen and tried to plan for had happened.

  3. There are so many ethical red herrings in here…. costs and comforts for example, if you believe that Tess still genuinely wants to live, then living comfortable vs. living in a hole really isn’t a consideration.

    I lean towards letting it happen, maybe even helping it happen, but I waffle. There is a difference between lucid and non-lucid patients and I think the lucid patients seeking death are a much easier call. It strikes me that this was the exact situation that Tess was dreading, and allowing it to get to that point was already against her wishes. If Tess from six months ago could step in a time machine and view the condition of Tess from the current, she’d probably administer the dose herself.

    This in many ways parallels a DNR. Before we get too far; Yes, there are obvious differences between the cessation of certain bodily functions (like a heartbeat) and dementia, but maybe not as many as you think, upon reflection, and I’m looking at similarities. DNRs are for the most part ideological, either the patient has a religious opposition to resuscitation, or they’re concerned about quality of life, or they don’t want to live in a vegetative state, but there isn’t a medically sound reason to sign a DNR, if there’s no chance of life, there’s no chance of resuscitation. The patient is in essence saying “If I get to a certain point, let me go, even though you can probably keep me alive.” In the case of someone requesting euthanasia in the case of extreme mental deficiency, they’re basically saying “If I get to a certain point, help me go, even though you can probably keep me alive.” I’m not sure that the exact mental deficiency that sparked the request should be used as a reason not to fulfill it.

    • My mother, if alive and able to communicate, would never have wanted to give up, no matter what. She believed that everyone should live forever, especially her. But she gave me her DNR, and when she was in a coma after having a heart attack mid-surgery for a hopeless condition, and the doctor said there was no way she would recover consciousness, I said, without hesitation, “End it.” My sister was surprised at the rapidity of my response. It was a painful decision, but not a hard one.

      • Having followed this blog for awhile, I can see why the situation with your mother was not a hard decision for you (and I appreciate the difference between hard decision and painful decision, and I’m sorry you had to make that call).
        It makes sense because (I’ll bet) you had role-played this in your mind, with a variety of scenarios, for some time, which is exactly what we all should do when faced with a loved one’s DNR or strong thoughts of suicide. Even better, as hard as it is, we should role-play this with the one who will be relying on us to tell the doctor to pull the plug.
        As usual, HT zeros in on the essential difficulty — what is the state of mind NOW of the one who is in crisis, and how do we evaluate and apply that.
        So, I had to go with Choose Life. Despite the good description of the situation (a script writer at work here?), I was not comfortable with “Pull the plug” because I just wasn’t able to evaluate accurately the pleas to ‘Let me live’.
        The other really hard thing would be the doubts and second-guessing afterward, especially if someone else had a different opinion of what should be done.
        When my Mother-in-Law suffered a severe hemorrhagic stroke, she was kept ‘alive’ with intubation and breathing apparatus until enough family members could gather. Then, a full day later, with the blessing of the Priest and the consensus of the family, the plug was pulled. Easy, but painful.

        • I would add that Lisa Genova has some books that delve deeply into these kinds of scenarios, early onset Alzheimers, ALS, Traumatic Brain Injury (hello NFL). Her approach is medicine and science, but the ethics are unavoidable.

  4. I rarely (read never) respond to your polls, only opting to weigh in in the comments.

    Here, I responded (making my response rarely). This was for a variety of impulsive reasons:

    1. It clarified some thoughts from the earlier post;

    2. It made me think about Rugby again and strengthened my opinion that you made the right decision;

    3. Because thinking of Rugby made me reflect that we HAVE to treat our pets differently than we treat people;

    4. We treat our pets more empathetically than we do people;

    5. People are not pets; if they want to live in pain, that is their choice;

    6. We euthanize pets when there is no hope (an important qualifier) because they don’t know better and we are supposed to know better and make the hard decisions selflessly;

    7. I will likely be the one to make the decisions about my parents and the “vegetative” State is the “easier” choice;

    8. A demented person, even if in pain, who expresses a desire to live (even if in obvious pain), deserves to have its wishes respected.

    9. Even if that demented person (for lack of a better word) wants to live where the lucid person might not, err on the side of respecting the wishes of the person;

    10. The quandary might be if I am asked to respect the wishes of a healthy person who, through dementia, wants to die.

    11. In that instance, I would probably withhold permission to kill the person.

    12 Happy Coincidence: I would also keep a pet alive, even if it wanted to die, if I believed there was a good chance of recovery and the re-commencement of good life.

    -Jut

    Postscript: I think not too infrequently of the Saturday morning 15-ish year’s ago when my dad told me to meet him at his office and told me that, if I did not take his guns away, he might not make it to Monday. Going to see him with the kids this weekend and will be thankful for the memories, instead of being sorrowful about what he (and my kids) would have missed.

  5. A DNR says let me go. Nowhere in a DNR does it say help me go..

    There is a huge difference between doing nothing and affirmatively taking steps to effectively commit homicide in its clinical definition of killing a human being.

    I ignored all the red herrings because they represented the avoidance costs by third parties in which the benefits accrue tothe third parties and not the patient bearing the entire cost. They were non-ethical considerations.

  6. After she gave her consent, signed the document, and defined exactly the point in her decline that she would wish to be put to sleep, a video would have to be made in which she clearly expressed herself in completely clear terms.

    And in that video she would have to speak to herself in her future condition. It sounds a bit like Total Recall and I suppose that is what I am thinking.

    Then, the person in the video Tess would have to make a case to the still living Tess trying to get her to understand the reasoning.

    I have to admit I was imaging this scene from Winter Light:

    • The problem with that is there is no debating a recorded video. What if the patient says that that is not her or that the video is all well and good but now that the conditions were met she now has reservations and no longer wishes to go through with that directive.

      • I realize that I have taken almost a science-fiction approach to the question. But this had to do with the way that Jack set up the hypothetical. The woman had an original interest, if it could be called that, in ending her life because in her rational state, her pre-decline state, she could visualize herself in the ugly, difficult circumstance of losing her rational capacities. And this is the reason she signed the forms. This is technically a decision made by her sovereign, rational self, and that is the only ‘self’ that we recognize can make any decision at all.

        Also, her family has an interest, if it can be called that, in putting her to sleep: they cannot afford to care for her and they too do not wish to face, with their rational selves, the painfulness of a person who has become absent from *personhood* normally understood.

        Finally, it is also supposed that the state, to some degree, and it would be a far greater degree in a state with socialized medicine, has an interest in putting her to sleep.

        It is supposed that when she enters her decline more thoroughly that her rational self is no longer there to make the rational decision. Therefore what now remains is an irrational self, a doppelgänger of sorts, an anti-self, which takes a position against her former rational self, the rationality of her family, and the rational state (sic). Her irrational self, the one that cannot make rational choices, asserts itself against the former rational self.

        And the hypothetical takes its form as an ethical problem within that situation.

        So — following the hypothetical — she must be convinced by her rational self, which is now replaced by an irrational self, one that cannot reason properly and can’t understand the consequences of its choices, to go forward in making the *right* choice, the one that she would really have wanted.

        A sort of tribunal would have to review the ‘evidence’, such as it is, and take the entire situation into consideration. This is not exactly an absurd example or a joke: perhaps at some point some situation like this will arise or had arisen?

        I ‘novelized’ the hypothetical for effect. I visualized a video-letter which the rational self created for the irrational self, knowing that in the future it would fall into unreason and not be capable of making the *right* choice. We have to interject here that the woman Tess in her worsened state is, effectively, a prisoner. She is not free. Because she is irrational, diseased, and a danger to herself and others. So, other people have to assume responsibility for her just like they do in a juvenile prison or a regular prison — or a mental hospital. (Or I should add a political psychiatric prison, which given our present climate with all its dystopian possibilities may be where things are tending!)

        The whole issue stands upon the question of ‘agency’, doesn’t it? Who has agency over their sovereign self. And what the limits and frontiers of that agency are.

        Now, if you really wanted to get serious about the hypothetical, and that also means really rational, all that I have described here would have been pre-visualized when she signed the form. But the ‘form’ is a weak mechanism. To really push the hypothetical forward she might have agreed to put on a collar or sorts, or a ankle bracelet, which when the time came as decided by her rational self would have injected a tranquilizer that would have incapacitated her, and at that point, not resisting, her death-wish would be obeyed.

        The idea of a video-letter sent from the past to the future, which is to say to her present, opens up all kinds of different possibilities. For example I was thinking of the movie Paris, Texas and the wonderful 8 mm family films showing the couple when they were *happy*. Here, take a look: Here is Tess being shown herself when she was well and life had not become ‘the veil of tears’:

        All this could be done through inducing a state in which she ‘dreams’ all of this and all of this, perhaps the content of her whole life, could be channeled down into her by advanced computer technology. She would be put into a state of feeling and seeing herself at her best, and then contrasted (though this would be cruel) with other chemically or computer-induces ‘visions’ of herself in a Hell-Realm: in her dementia, in a dirty ward, with demonic ‘doctors’ prowling around like Donald Trump circling Hillary like a ravenous, drooling wolf . . .

        The interesting thing about the Bergman clip — the woman ‘reading’ her letter — is that it deals on theological themes and two people who stand in a relationship to a dying faith: a faith that no longer holds them.

        As a novel or as a story — I think you can see that Jack’s hypothetical has great potential, perhaps even as a play — there are so many strange and interesting possibilities.

        • It does sort of fit in to the tragedy of losing one’s rational self and the entire platform of memory. This is the translation of one line from that song:

          Bernardo y Sus Compadres, Canción Mixteca:

          Que lejos estoy del suelo donde he nacido
          Inmensa nostalgia invade mi pensamiento
          Y al ver me tan solo y triste qual hoja al viento
          Quisiera llorar quisiera morir de sentimiento

          How far away I am from my home-country
          I am flooded with nostalgia and emotion
          And seeing myself so alone and sad, a leaf blown by the wind,
          I just want to die . . .

          I took a few liberties in my translation, but not many . . .

    • And if future-self said “Screw you, past self; I want to LIVE!”?
      I’m assuming that the unstated inference is that future-self (well, present-self, actually) gets to make that call. I would ignore the doctor entirely. After a lifetime of working for them, with them, suffering under them as a “patient” (more like powerless victim at times), and now seeing how they’re molded in school, I’ve come to the conclusion that all too many of them are painfully-stupid, arrogant,self-impressed Luddites with God complexes who actually think they’re scientists (the real scientists are the people with Ph.D’s who devote their entire lives to studying a single organism or chemical compound), and not the glorified mechanics that they actually are.
      Always doubt, always get a second opinion, trust your gut and say “NO, you’re WRONG!” or some variation of that theme.

      • That’s where I’m at in this argument. It’s maybe not super easy to say, “Let me die”, but it’s easier to say it when you’re speaking of a hypothetical future rather then face it when the moment comes. Some people may rethink those wishes when faced with slowly suffocating or dying of starvation or thirst (neither of them very pleasant ways to die).

  7. I voted “no. When in doubt choose life.” But my heart pangs for a much more severe answer “No. Don’t murder people; there’s no doubt to be had” so I could be in a far-flung rigid minority. I’m standing by Steve’s comment from the last thread and Chris’s from this one: it is immoral to take the life of a suffering human being to alleviate that suffering, and removing extraordinary means of prolonging life is a different species of moral dilemma (a la double effect).

    • It seems to me that the core of your view is one that has a root in a very specific metaphysics. I state the obvious here. A Catholic perspective, I think, is one in which a person must accept what Providence has established for them: effectively what sort of death they will have to face. But accepting one’s destiny, for a resolute Catholic, is a decision connected with many many other considerations. And the whole life would have been lived as a sort of preparation for the final moments, or the final cycle.

      What is interesting is that fewer and fewer people have such an ‘established metaphysics’ and so the implications of suicide — the real question here — or assisted-suicide which could be interpreted as mercy-homicide, is one that is visualized absent the notion of ‘beyond’ or continuation of ‘soul-life’.

      • All quite true. I’ll go one further. Not only is the new, unspoken metaphysics visualized in absence of a view of the beyond but also in the absence of any meaningful idea outside the choice of the individual. It exists as a single point in a continuous free fall. More and more, people will realize that if all that matters is my choice pertaining to what is good, why should I ever compromise that for the sake of another’s. You know it as well as I do, though. The causes of modernity’s destruction are clear and obvious. I think everyone can see it, too, but everyone has a vested interest. “If I recognize that there is a transcendent good to be observed over and above my personal will, it will demand that I refrain-from/perform-action X.” The opium epidemic is a particular, physical manifestation of a pre-existing psycho-spiritual reality.

        The rejection of a known moral truth for the sake of preference is the current popular metaphysic. No, maybe it’s the choice to avoid the subject of metaphysics entirely to avoid its implications. There simply isn’t an opposing philosophy which doesn’t reduce to common nihilist parlor tricks – the desperate avoidance of a particular conclusion rather than the honest presentation of an alternate one.

  8. A rational state of mind always chooses life in the immediacy. It is the irrational mind that chooses death. The irrational mind creates illusions of what might be. Who can say for certainty that net utility of dying outweighs that of living?

    An advanced directive is used when the patient cannot communicate not when the decision countermands an earlier decision.

    The only reason an advanced directive is in writing is because the person is giving instructions in the event that he or she is UNABLE to communicate how to procede medically. Any communication made by the individual negates the validity of an Advance Directive.

    With the advent of deep fakes I would never consider a video evidence of a DNR.

    • I don’t know for sure on that. I’ve debated with my future self and caveat of course that it isn’t final and who knows how my value sets will shift. But I’ve always wondered if 90 year old me, expending 10s or 100s of thousands of dollars to keep myself going another 6 months, isn’t actually making post-me’s life alot harder on those who are expending stupid amounts of money prolonging what hopefully will have been an ALREADY full-enough and meaningful-enough life poured into those exact same people who are now wasting precious resources they could be devoting towards enhancing the lives of my grandchildren.

      • Michael

        I fully understand your point and I accept that an otherwise rational person can and often do choose to end one’s own life. We must however recognize that choosing to die is an irrational decision in light of the fact that such decisions are made under duress or belief of future duress. Such decisions are made uniformly with incomplete information.

        This hypothetical dealt with a person who is saying they no longer want an assisted suicide directive carried out. Some argue that the advance directive supercedes all later decisions because they believe the person is mentally incompetent to rescind an earlier directive.

        My point about rationality was that the ability to reason requires an understanding of the benefits and costs that will accrue to the patient right now and not in the hypothetical future.

        Red Pill treats this issue as a legal one such that rescission requires competency and because the patient is deemed by a court to be incompetent therefore the person making the original AD is no longer permitted to make changes.

        Personally, I believe a legal policy that makes advanced directives an irrevocable death warrant would be detrimental to society as it would cause people not to sign advance directives which would lead to maintaining all life artifically for indefinite periods.

        This is however an ethics issue not specifically a legal one. Even if it was, the court determining competency would appoint an unrelated party to be a guardian ad litem who will make the call based on the current responses of the ward of the court. I believe once appointed the guardian’s decisions supercede all othe POA’s. This is not to say that advanced directives will be ignored in all decision making.

  9. I do not see why there is any controversy whatsoever.

    Someone says “Do Not Kill Me”; the obvious answer is to not kill him or her.

    To address the context, during a “lucid” moment, the subject said she wants to euthanized if institutionalized. However, she is still suffering from dementia, and even if lucid a particular moment, her ability to reason and consent must be considered suspect. With two conflicting statements, wanting to live and wanting to die, how in any-right minded democratic society under God, Bob, or nobody at all supposed to assume that that death is the better option?

    An advanced medical directive has validity IF AND ONLY IF a patient can no longer reasonably communicate intent. If the subject clearly communicates “Do Not Kill Me”, the advance directive stating otherwise must be made null and void, forever. If the subject in the future expresses a wish to die, it must be treated at a potential symptom of either depression or dementia, because such conditions make future consent difficult to discern.

    If the conditions of the institution contribute to the desire to die, then that should be taken up with the relevant health department. Treating unwanted patient poorly, until they want to die and can be legally disposed of should be obviously unethical.

    • Addendum to my comments regarding the addendum:

      If we make the generous assumption that human euthanasia is ethical in at least some contexts, and the subject wished to use this option, she had a duty to volunteer for it while lucid. Otherwise, she has forfeited the option.

      If she chose to defer dying while she still had a sense of her faculties AND expressed a desire to live when her faculties were gone, then the desire to die is suspect. The existence of an advanced medical directive (“We had no choice!”) is a rationalization, itself almost a red herring.

    • Rich
      Actually she stated when institutionalized AND when she believed it was time.

      That puts some legal weight behind your analysis as well as all others that said no.

      The lucid moment in which she affirmed the advanced directive affirmed that she and only she would decide when that time would be after being institutionalized. This is validated by her decision that she did not want to die now.

      It seems logical that if institutionalization was the trip wire to execute the advance directive there would have been no need to institutionalize her the family could have had her euthanised at the point of determination for institutionalization. That did not happen because the mother never indicated she believed it was time; actually she indicated quite the opposite.

      • “She has never said that this is time to carry out her wishes to be euthanized,”

        You are correct. The whole discussion is moot.

        The only thing to do is report the doctor for misconduct.

  10. Given that the scenario has established the euthanasia is legal in the given jurisdiction, the actual question is: Do I make the decision based on what my sister is expressing in her now mentally compromised state—“I don’t know who the hell you are!” she responds, her eyes wide in hysteria.”–or do I follow the wishes she clearly documented when she was lucid and then recently reaffirmed ”On her good days she is lucid, and on one of them, not too long ago, she confirmed that the document she had signed still reflected her wishes.”? All of the other factors mentioned, possibility of future cure, what her care costs, where she will have to live when the money runs out, should not be factors in my decision.

    I am assuming that the document in question is valid, she was competent when it was signed, and is something like a durable power of attorney or living will that has named me as the surrogate authorized to make medical decisions in the event she is incapacitated. Because she clearly documented her wishes, I do not have to invoke substituted judgement as a guide for decision making. According to the given scenario, I also know that she is now at the point where she wanted to be euthanized ”She has never said that this is time to carry out her wishes to be euthanized, but there is NO doubt that this is the state she dreaded, and that she would regard this as “time” were she able to think clearly.” Emphasis on “no” added.

    But what about ”I want to live! I don’t want to die! Help me! Someone help me!” ? Did she regain competency? I don’t know but as the brother I think it would be reasonable to ask for an evaluation of her competency. There is no rush to carry out the procedure and time should be taken to determine the facts. If she is determined to be competent, then she has the right to change her mind and I cannot make decisions for her. But what if she is deemed to be incompetent? My understanding of Florida law is that to amend or revoke an advanced directive the person must be competent. This may not be true in other states and my experience in situations like this that involve advanced directives, the facility attorney and ethics committee would be consulted.

    If she is determined to be incompetent and she has reached what she would regard as the “time”, then it rests on me as the person she named to be her surrogate and whom she trusted to follow her wishes to do just that despite the fact that it would be a heart breaking decision. My answer is “yes, it’s what she wants”. I will follow the wishes my sister expressed when she was the intelligent, competent person I knew before she developed her devastating illness. To do otherwise would be to betray her trust.

    Looking at the other answers. “No. She has withdrawn her consent” would be correct if by law she was able to withdraw her consent, that is the question of competency. The answer “No. She obviously doesn’t want to die NOW” is basically the same answer, does she have the capacity to make the decision at that time. “No. When in doubt, choose life” is an answer based on personal values and while I would not fault someone for making that decision, I believe that it would be unethical to agree to serve as a surrogate knowing that one simply would not follow the clearly expressed wishes of the person making the directive when it came down to making the hard decision. Both the yes answers are basically the same although as noted the question of ability to withdraw consent is a legal one. The last answer “Yes. It’s in her best interest” cannot even be considered in this hypothetical. It is not my place to decide what is in her best interest, she has already clearly expressed what she believes is in her best interest. A situation where “best interest” has been invoked since ancient times is “battlefield euthanasia.”

    ” The doctor says that he is about to administer a lethal injection, and asks you and your brother to assist him, as he believes she might resist.” If hypothetical euthanasia were handled analogously to other situations involving advanced directives, this would not be the way it would be handled. The doctor would let the surrogate know that medical opinion was that the sister was in the condition detailed in the advanced directive and ask for a decision about what to do. A real-life scenario might be advising the surrogate that the patient is in a persistent vegetative state and ask if the desires expressed in the advanced directive to discontinue life support should be carried out. The surrogate would then make the decision. Another part of the hypothetical that raises questions for me is that of requesting that family members actively participate in the procedure. In my opinion, making such a request would be totally unethical. I feel that it would be ethical and appropriate that family members who wished to remain with the individual as they died be allowed to do so.

    In my actual practice of consultation psychiatry, questions related to euthanasia didn’t come up because it is not legal. Questions I did get asked included whether or not an individual was competent to consent to or refuse a procedure. Oddly enough, surgeons almost never asked if a patient was competent to consent to an operation but asked if they were competent to refuse. A common question I received was regarding the competency of a patient to refuse renal dialysis when knowing that such a refusal would inevitably result in death. Most of those patients were competent to make the decision. It was very difficult explaining to family and sometimes to medical staff, that the patient was autonomous and could not be forced to accept treatment even when the outcome was certain to be death in a short time.

    Joed68 said, ” “If we assume that the person who no longer knows who you are is a different person cognitively than the person signing the document, then you cannot assume that the person facing you would make the same choice.” True. They are a different person cognitively, that is the whole point. If they weren’t a different person cognitively, then there would be no decision to be made. When they were cognitively intact and knowing that they had a progressive illness that would inevitably severely impair their cognitive abilities, they took steps to legally document what they wanted to happen when they became “a different person cognitively”. It defeats the purpose of having an advanced directive if we say now that they have become a different person cognitively, therefore we should not do what they said they wanted done when they became that person. There could be no valid advanced directives if cognitive decline were the issue involved.

    This questions of consent, competency, advanced directive, surrogacy and so on is vast and murky. There is a huge amount of literature on medical ethics. It is very difficult to set firm rules for things such as DNR and withdrawing life support for a patient in a persistent vegetative state, because every situation will have unique factors and some of those factors may change very rapidly in a single individual. There is the human element of families that are called on to make complicated and heart wrenching decisions. There are even some basic terms like “death” without a universally accepted definition. All major hospitals have medical ethics committees and attorneys to help deal with these complex issues.

    • While I appreciate your clinical opinion here I believe you have made some serious assumptions of facts not proven.

      Where in the directive is information regarding what would be considered “the time”? Why is there “No Doubt” in the mind of the family? How can we assess there is no doubt when no specific information is provided? Is it not also possible that mom meant when she is in a vegetative coma?

      The bottom line is that she consented to a procedure that could only occur when she believed the time was right. This advance directive gives no guidance as to what she believed would be the right time in the event of advanced dementia. In fact, the directive could have stated ” in the event of advanced dementia the procedure must be carried out and is irrevocable.” It is as likely that such a statement was not included for precisely because mom wanted to be able to rescind at any time. Absent any specific guidance no one can say that there was no doubt mom believed this would be the time.

  11. Rich
    Actually she stated when institutionalized AND when she believed it was time.

    That puts some legal weight behind your analysis as well as all others that said no.

    The lucid moment in which she affirmed the advanced directive affirmed that she and only she would decide when that time would be after being institutionalized. This is validated by her decision that she did not want to die now.

    It seems logical that if institutionalization was the trip wire to execute the advance directive there would have been no need to institutionalize her the family could have had her euthanised at the point of determination for institutionalization. That did not happen because the mother never indicated she believed it was time; actually she indicated quite the opposite.

  12. My personal position is expressed best by Dylan Thomas:

    Do not go gentle into that good night.
    Rage, rage against the dying of the light.

    Palliative relief that does not kill has been used for both my parents, for ultimately terminal digestive tract cancers. Only once has there been a request to give a lethal dose, during a very painful episode. That once was recanted: we believe in living until something else kills you.

    However, I have been in enough pain (just this year) to joke about it to a doctor. When my gallbladder died in the space of a few hours, I endured 16 hours of the worst pain of my life (have had kidney stones: no comparison).

    I asked for more pain meds from the doctor, who said “It is a fine line between relieving your pain and keeping you breathing.”

    “Doc, at this point I’ll take either option!”

    My lovely wife, quiet up to this point, spoke up “I have an opinion about that!”

    I got no more meds. And I was not serious, nor likely in my right mind either.

    I voted for the choose life option

    • Opiaphobia. In all likelihood, you were nowhere near having opioid-induced dyspnea/apnea. Too bad you probably suffered for nothing. Doctors….

  13. Chris thank you for your comments.

    “I believe you have made some serious assumptions of facts not proven.” There are no facts to be proven. A hypothetical question is based on assumptions not facts. There is “no doubt” because the hypothetical states there is no doubt. If there were doubt, then it would have to state that and this would be an entirely different question. The hypothetical doesn’t say the family has “no doubt” just that there isn’t any.

    “Is it not also possible that mom meant when she is in a vegetative coma? The hypothetical didn’t state that. It said only that she stated in the document that when she had to be institutionalized and when she believed it was time, she consented to being euthanized. The hypothetical states that she is in a “facility” and it has previously stipulated that there is no doubt that she is at the point “she dreaded.” She didn’t mean when she was in a “vegetative coma” because the hypothetical clearly states that she is suffering from premature, progressive dementia as the concerning condition.

    “It is as likely that such a statement was not included for precisely because mom wanted to be able to rescind at any time.” Any advanced directive can be rescinded at any time if the individual who signed the directive is competent. As long as she is competent, she can rescind the document. If she is not competent, it is more complicated and may depend on state law. What we believe about what Tess wanted is immaterial. The only thing that matters is precisely what she said in the document and all we know about that is what Jack stated in the hypothetical. Since she is noted to be a bright woman, she probably said what she meant.

    According to the hypothetical, she suffered a dementing illness, she made an advanced directive, she consented to being euthanized when she was institutionalized and the time was right, she is now in an institution and there is “no doubt” that the time is right. In the real world, this is much more complicated because questions like how do we figure out it is the right time from information in the document are actually the really difficult ones and sometimes result in endless family bickering and legal actions. Jack has made it simple by just stipulating that there is no doubt it is time.

    My recommendation to everyone is to make an advanced directive and be sure it says what you want. You don’t want the power to make decisions regarding your health care to ultimately fall to that relative you really hate.

    • Sorry missed an end tag in the first paragraph. Also want to emphasize that I personally believe in keeping going. I told my wife I want to keep living to get that AF retirement as long as I can.

  14. Now this ticks me off a little. One of the main reasons I posted the poll is because Commenter Esteemed Red Pill Ethics insisted, in no uncertain terms, that the issue wasn’t even a real ethics problem, that it was obvious that the Dutch doctor behaved ethically by killing the woman. Well, the readers polled say that it was not ethical by about an 9-1 margin, meaning that, since ethics is the inquiry into right and wrong, it is certainly a legitimate ethics problem, and it was appropriate for me to raise it as such.

    So where is RPE?

      • The dilemma part is in what have been called the red herrings in the hypo, like the fact that the family is short on resources, or that the facility Tess might end up in is a hell hole.

        Here’s RPE’s initial comment from the original post, so you don’t have to jump back and forth:

        Well that deliberately misrepresents the issue doesn’t it. Weak sauce Jack, weak.

        If in my lucid state I sign a form saying I want X, then my wants in a non-lucid state are irrelevant. Accepting consent form a sane person is ethically valid, accepting consent from an insane one is not ethically valid. They didn’t kill the resisting patient because she had dementia or out of convenience. They rightly concluded that the patient’s dementia prevented them from making a reasonable and ethically valid expression of intent and went with the that last known ethically valid expression of intent. They even consulted with those who knew the patient best in order to double check. They were all on the same page and made the patients wishes happen.

        I hope I have doctors and loved ones with the same fortitude. If I end up in a vegetative state and two or more doctors say that I have a greater than, say, 80% chance of being in that state permanently, put me down. I don’t care what vegetative me says or does while you’re doing it. The care giver I’m paying and the family I contribute to damn well better respect my lucid wishes over some brain dead thrashing and moaning.

        The doctors and the family were spot on, the judge got it right, and the only ethically interesting thing here is a well trodden discussion about who can give ethically valid consent and, maybe some ethics hero status for the family and doctor who went above and beyond to make sure that the patient’s wishes were respected.

    • This got me thinking about an anecdote my father shared a few days ago. When he was a young man working in a grocery store he overheard someone talking about someone who’d celebrated his 99th birthday. He disgustedly exclaimed “Who wants to live to 99?” His manager, abruptly and with a deadpan tone replied “Someone who’s 98.”

      RPE might have no response. Maybe he just enjoys devil’s advocacy. I think it’s a plucky, admirable quality if I compartmentalize it away from the subject matter.

      You lawyers must be rubbing off on me.

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